IN THE SUPERIOR COURT FOR THE STATE OF ALASKA. THiRD JUDICIAL DISTRICT DECISION AND ORDER

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1 IN THE SUPERIOR COURT FOR THE STATE OF ALASKA ALASKA DEMOCRATIC PARTY, THiRD JUDICIAL DISTRICT vs. Plaintiff, GAIL FENUMIAI, in hcr official capacity as DIRECTOR OF THE DIVISION OF ELECTIONS; and STATE OF ALASKA, DIVISION OF ELECTIONS, Defendants. Case No. 3AN-IO- 1162I Cl I. INTRODUCTION For the first time in the election history of the State of Alaska, the Division of Elections l has provided a list of the names, party affiliations, and the registration status of write-in candidates to each polling place in the state. The actions of the Division are in clear violation of an Alaska administrative regulation. Plaintiff Alaska Democratic Party and intervenor Alaska Republican Party have clearly shown that they will probably succeed on the merits of their claim.2 Pursuant to Alaska R. Civ. P. 65,3 the court hereby I The Director of the Division of Elections and the State of Alaska, Division of Elections, are referred to herein as the Division. 2 Alaska Democratic Party is referred to herein as ADP. Alaska Republican Party is referred to herein as ARP. In the midst of a hotly contested general election campaign, ADP and ARP have joined forces remarkabl y to oppose the actions of the Division. Alaska Democratic Party v. Gail Fenumiai et al. 3AN-I O-II 62ICI Page I of 13

2 grants a temporary restraining order enjommg the Division from allowing election workers and polling place workers to post write-in candidate names, to provide a list of write-in candidate names to voters, or to provide verbally the names of write-in candidates to votcrs at any place within 200 feet of a poliing place for the November, 20 I0, general election. II. FACTS AND PROCEEDINGS On October 15, 2010, the Division surreptitiously sought approval from the Department of Justice for approval under the Voting Rights Act of 1965 to provide polling places with a list of write-in candidates for the November 2, 20 10, general elec tion. 4 The list would include the name of the candidate, the candidate's party affiliation, and the write-in candidate's registration status with the Division. 5 The Division had never before provided a list of wri te-in candidates in polling places. 6 3 This Decision and Order is intended to comply with the requi rements of Alaska R. e iv. P. 65(b) and (d). 4 Under Section 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C. 1973(c), and 28 C.F.R , the State of Alaska is required to seek approval from the Department of Justice for all changes to its election procedures. See Ex. 1 of ADP 's reply memorandum. The Division is also bound by a settlement agreement approved by the federal district court for the District of Alaska in Nick v. State, 3:07-cv TMB dealing with language assistance to Limited-English Proficient voters in the Bethel Census Area. If, with forethought, the Division had decided to adopt a uniform standard of assistance to voters through use of a wri te-in candidate list, the Division should have followed the procedures of the Alaska Administrative Procedure Act, AS 44.62, by proposing a new regulation, taking public comment, and only then changing the law., See Ex. I of ADP 's reply memorandum. Alaska Democratic Party v. Gail Fenumiai ct al. 3AN ICI Page 2 of 13

3 The Division implemented its write-in voting list plan without obtai ning Department of Justice approval of the plan.' As a result of a posting of the list at an absentee polling station in Homer, ADP lea rned by at least October 19, 2010, of the Division's actions. s ADP demanded that the Division withdraw the lists from polling places because 6 AAC 2S.070(b) prohibits information regarding a write-in candidate from being provided at a polling place or within 200 feet of any polling place' By letters dated October 20 and 22, 20 10, the Division refused to remove the write-in candidate lists from polling places. lo On October 25, 2010, ADP filed a lawsuit against the Division to enjoin the Division's action in distributing write-in candidate lists to polling places. ADP requested a temporary restraining order against the Division. The court held a hearing on the TRO request on the afternoon of October 25, At the hearing, the court granted the requests of ARP and the Lisa Murkowski for U.S. Senate Committee I I to intervene in the case. The court requested that the Division and the Committee file memoranda to 6 See Ex. 1 of ADP's reply memorandum at 2. 7 See Department of Justice letter dated October 26, 20 10, and attached to Division counsel's letter of the same date to the court regarding supplemental authority. 8 See Ex. 3 to the complaint. 9!d. 10 See Exs. 5 and 6 to the complaint. II The Lisa Murkowski for U.S. Senate Commi ttee is herein referred to as the Committee. Alaska Democratic Party v. Gail Fenumiai et al. 3AN-1O CI Page 3 of 13

4 support their positions by noon on October 26, The court required that ADP and ARP file replies by 4:30 p.m. on October 26, All parties filed the required legal memoranda. On October 26, 2010, the Alaska Federation ofnati ves l2 moved to intervene in the case. While the court has not yet acted on AFN's moti on, it has reviewed and considered AFN 's memorandum in support of the Division's position. Also on October 26, 20 10, the Department of Justice provided conditional approval of the format for the write-in candidate list proposed by the Division on October 15,2010. III. APPLICABLE LEGAL STANDARDS A. ADP must demonstrate probable success on the merits. The showing required to obtain a TRO or a preliminary injunction depends on the nature of the threatened injury and the ability to adequately protect the defendant from harm should the plaintiffs position prove unavailing. [f the plaintiff faces the danger of "irreparable hann" and if the opposing party is adequately protected, then the court applies a "balance of hardshi ps" approach and the plaintiff must demonstrate "serious and substantial questions going to the merits of the case.,,13 However, if the plaintiffs threatened hann is less than irreparable or if the opposing party cannot be adequately 12 The Alaska Federation of Natives is referred to herein as AFN. 13 State v. Metcalfe, 11 0 P.3d 976, 978 (Alaska 2005). Alaska Democratic Party v. Gail Fenumiai et al. 3AN-1O CI Page 4 of 13

5 protected, then the plaintiff must meet a heightened standard and make a "clear showing of probable success on the merits."i' In this case ADP must demonstrate a clear showing of probable success on the merits. Thousands of earl y votes have already been cast under the Division's disputed write-in procedure. Although those votes are not at issue here, the court recognizes the potential impact that injunctive relief could have both prospcctively and retrospectivel y. The Division has a legitimate interest in administering a consistent and uniform election and in maintaining confidence in the validity of every vote cast. This interest cannot be guaranteed by a bond. AD? was quick to acknowledge as much at the TRO hearing. Accordingly, ADP must demonstrate a clear showing of probable success on the merits. 15 B. The court reviews the Division's interpretation of its own regulation for reasonableness. The Division's determination that its regulations permit the distribution of write-in candidate lists to those in need of assistance is entitled to deference. The Supreme Court has held that an agency's interpretation of its own regulations is subject to review under the "reasonable and not arbitrary standard," noting that a "deferential standard of review properly recognizes that the agency is best able to discern its intent in promulgating the 14 Id. 15 Because the court finds that thc Division's interest cannot be adequately protected, it need not detennine whether ADP is threatened with irreparable hann. Metcalfe, 11 0 P.3d at 979 n.9. Alaska Democratic Party v, Gail Fenumiai et al. 3AN-I CI Page 5 of 13

6 regulation at issue.,,] 6 However, that deference is not without limitation. The Supreme Court has also recognized that "[a]ithough an administrative agency's interpretation of its own rules is entitled to great weight, the ultimate resolution of a regulation's meaning is a question for the court.,,] 7 While the court should defer to an agency's interpretation, it cannot affirm that interpretation if it is meritless.] 8 Accordingly, AD? will be entitled to a TRO only if it makes a clear showing of probable success in demonstrating that the actions of the Division are based on an unreasonable and arbitrary interpretation of its regulations. The court finds that ADP has made such a showing by demonstrating that the Division's distribu tion of lists of write-in candidate names clearl y violates its own administrati ve regulation. IV. DISCUSSION A. The Division's actions violate 6 AAC (b). Through the Division, the State of Alaska has adopted an applicable administrative regulation known as 6 AAC (b). The regulation provides as follows: "lnfoffi18tion regarding a write-in candidate may not be discussed, ex hibited, or provided at the polling place, or within 200 feet of any entrance to the po ll ing place, on election day." For this general election, the Division has initiated a procedure of placing in each 16 State v. Valley Hospital Association. Inc., 116 P.3d 580, 585 n.4 (Alaska 2005), quoting Sirosh's 11M v. Fairbanks N. Star Borough, 12 P.3d 11 80, (Alaska 2000). 17 State v. Merriouns, 894 P.2d 623, 627 (Alaska 1995), quoting Borkowski v. Snowden, 665 P2d 22, 27 (Alaska 1983). 18 Merria"'ls, 894 P.2d at 627. Alaska Democratic Party v. Gail Fenumiai et al. 3AN-IO-1162I CI Page 6 of 13

7 polling place in the State of Alaska a list containing the name, party affiliation, and registration status with the Division for write-in candidates. Infonnation is knowledge. The Division's action in providing the wri te-in candidate list to each polling place and then instructing its pol ling workers to disseminate that knowledge to inquiring voters clearl y provides voters with information regarding a write-in candidate. The Division's actions also clearly violate 6 AAC (b). The Division's arguments that the knowledge that it has provided to voters about write-in candidates is not "information" as that term is used in the regulation is simply wrong. The court fi nds that the plain and clear meaning of the regulation is violated by the Division's actions. The Division has an affirmative duty to follow the election regulations that it promulgates. 19 The Division violated this affinnative duty by not foll owing the plain meaning of6 AAC (b). The Division's interpretation of 6 ACC (b) is unreasonable and arbitrary. As such, the Division's interpretation is not entitled to deference. 2o Besides, an agency's new, last minute interpretation of a regulation is not entitled to deference. 21 Even marc 19 Cf Trustees for Alaska. Alaska Ctr. For the Ellv't v. Gorsllch, 83 5 P.2d 1239, 1244 (Alaska I 992)("An agency is bound by the regulations it promulgates."). 20 Regulatory Com/ll'/l of Alaska v. Tesoro Alaska Ca., 178, P.3d 11 59, 1163 (Alaska 2008). 21 See TatemojJ v. State, 905 P.2d 954, 968 (Alaska 1995)(noting that a position announced by an agency during litigation is owed no deference). Alaska Democratic Party v. Gail Fenumiai et al. 3AN-IO CI Page 7 of 13

8 shocking is the Division's implementation of its "haste makes waste" write~in voting list determination without obtaining required Department of Justice approval of its actions. 22 The Division's write-in candidate list has another "haste makes waste" component. AS I05(c) states that a person who wishes to be a wri te-in candidate in the election can file a letter of intent "not later than five days before the general election." The general election is November 2, Thus the wri te-in candidate list can change up until October 28,2010. Indeed, the list has already changed. The Division's list provided with the complaint as Exhibit 1 has already been revised by the Division. 2 ) Among other changes, there have been additions to the critical U.S. Senate w rite~in candidate list. B. The applicable administrative regulation is not void as contended by the Committee. Faced with the plain language of the Division's regulation, the Committee attempts to justify the Division's actions by arguing that 6 AAC (b) is invalid." AS provides that the director of elections may adopt regulations necessary for 22 The Department of Justice's October 26, 2010, tentative approval of the Division's write-in list decision is not in any way detenninative of the outcome of this case. The Department's approval relates to compliance with provisions of the federal Voting Rights Act of 1965 not the proper interpretation of Alaska's election regulations. 23 See Ex. B to the Division opposition memorandum. 24 The Committee's memorandum at 9. Alaska Democratic Party v. Gail Fenumiai et a1. 3AN CI Page 8 of 13

9 the administration of state elections. The questioned regulation IS clearly within the broad scope of authority delegated to the director. The party challenging the validity of a regulation has the burden of proving invalidity.25 The Committee has not met its burden to show that the Division's regulation is invalid. The questioned regulation is consistent with other election regulations and statutes. For example, AS states that during the hours that the polls are open an election board member may not discuss any candidate while on duty. Likewise, 6 AAC 2S.050(d) provides that instructions for indicating a write-in choice will be posted in each polling place. 26 c. The statutory obligation of the Division to provide assistance to voters in voting is not thwarted by the court's ruling. The Division justifies its position by arguing that its actions fulfill its duties to aid a "qualified voter needing assistance in voting.',27 There are multiple problems with the Division's argument. First, the argument directly conflicts with 6 AAC (b). Wherever possible, statutes and regulations should be interpreted in a fashion consistent 25 Vail v. Caffman Engineers, Inc., 778 P.2d 211 (Alaska 1989). 26 "Instructions" in 6 AAC 2S.070(d) must mean something other than "infonnation regarding a write-in candidate" as set forth in 6 AAC (b); otherwise the two regulations would be inconsistent. The court should strive to interpret regulations in a consistent fashion. 27 AS Alaska Democratic Party v. Gail Fenumiai et a1. 3AN-IO-1l62ICI Page 9 of 13

10 with each other. The Division 's interpretation violates this canon of statutory construction. Second, there is a critical difference between assistance in voting and assistance in who to vote for. The Division's list prompts voters on who to vote for; it doesn't provide assistance in actually voting. This distinction is critical. Voting assistance might include helping vision impaired or illiterate voters cast ballots. It might include assistance in spelling a name. On the other hand, providing voters with a list of write-in candidates smacks of electioneering at the polls, particularly where this form of electioneering is specifically prohibited by 6 AAC 2S.070(b). Third, the Division's assistance argument rings hollow in light of the Division's past practices. If it were important "assistance" for the Division to provide voters with lists of wri te-in candidates, then the Division has been asleep at the switch for the past 50 years. The Division first developed the need for a write-in candidate list 12 days ago. AFN claims that Alaska natives who may not be proficient in English will be disadvantaged if the write-in list is thrown out. The problem with this argument is that the list is in English. It will do little to assist non English speaking or limited English speaking voters. D. Federal law does not require that the Division provide a list of write-in candidates to polling places. The Committee argues that the United States Constitution and federal law require the Division to provide write-in candidate lists as part of its aid to voters in need of DECISION A D ORDER Alaska Democratic Party v. Gail Fenumiai et al. 3AN ICI Page 10 of 13

11 assistance. 28 Specifically, the Committee points to provisions the Voting Rights Act, the Voting Accessibility for the Elderly and Handicapped Act, and the Americans with Disabilities Act. 29 These acts variously require that states provide improved access, accommodation, and aid to those who need help in the voting process. What these acts do not require is a particular mode of assistance, let alone the provision of write-in candidate lists. The Committee illogically argues that "[b]ecause the list of candidates could assist the Division in providing that aid... a blanket prohibition on the list's use... would also violate these acts.,,30 There arc various tools that the Division can use to fulfill its obligation under federal law to aid voters. It simply docs not follow that a regulation limiting the use of one of the tools prevents the Division from meeting its obligations and thus violates those laws. The Committee's constitutional argument is similarly misplaced. The Committee argues that prohibiting the use of candidate lists impennissibly burdens the constitutionally guaranteed right to vote for the candidate of one's choice because it "would render it impossible for the Division to assist votcrs in celtain situations.,,3! It is not at all clear to the court under what circumstances a list of write-in candidates would 28 See the Committee memorandum at Jd. 30!d. at (emphasis added). 31!d. at 10. DECISION A D ORDER Alaska Democratic Party v. Gail Fcnumiai et a!. 3AN-I O ICI Page II of l3

12 provide the only means of assisting a voter in need of aid. Unfortunately, the Committee does not elaborate on its argument. The Division also points to a number of state jurisdictions that provide write-in candidate lists at their polling places as proof that candidate lists are not electioneering. 32 The Division misses the point. No ne of the listed jurisdictions has a statute or regulation analogous to 6 AAC (b) that expressly prohibits providing write-in candidate infonnation at polling places. The examples that the Division provides are thus not persuasive to this court. E. ADP has demonstrated probable success on the merits of its claim. For all of the foregoing reasons, ADP has demonstrated that it wi ll likely prevail on the claim that the Division's nascent policy of providing write-in candidate lists at polling places violates state elec(ion regulations. Specifically, ADP has demonstrated that the clear language of 6 AAC (b) prohibits the Division from providing infonnation about write-in candidates- including their names, party affiliations, and certification status- for distribution to voters at polling places. Further, ADP has demonstrated that the Division has already provided such information to early voters and intends to continue providing it throughout the general election. Finally, the Division's justification for its new policy is without merit because it based on an unreasonable and arbitrary interpretation of its own regulation. Even under the deferential standard that 32 See the Division's memorandum at 19 n.23. Alaska Democratic Party v. Gail Fenumi ai et al. 3AN- IO ICI Page 12 of 13

13 this court is bound to apply, it would not likely uphold the Division's actions. Because ADP has demonstrated that it is likely to succeed on the merits, it is entitled to a TRO. v. CONCLUSION ADP is entitled to and is hereby granted a temporary restraining order enjoining the Division from disseminating and using lists of write-in candidates at all polling places in the State of Alaska relative to the November, 20 10, general election. DATED at Anchorage, Alaska this 27'" day of October, ~a(l~ FRANK A. PFIFFNER Superior Court Judge Alaska Democratic Party v. Gail Fenumiai et al 3AN- I CI Page 13 of 13

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ) ) ) ) ) ) ) ) ) ) ) ) ) )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case :0-cv-00-DGC Document Filed 0/0/0 Page of 0 0 0 WO Arizona Green Party, an Arizona political party, et al., vs. Plaintiffs, Ken Bennett, in his official capacity as Secretary of State for the State